Driver Cleared by Manhattan Jury in Hit-and-Run Death of Marilyn Dershowitz

Ian Clement, the U.S. Postal Service employee who drove a truck over cyclist Marilyn Dershowitz, then left the scene, has been found not guilty of hit-and-run by a Manhattan jury.

Marilyn and Nathan Dershowitz. Photo via New York Post

The crash occurred on July 2, 2011, as Dershowitz and her husband Nathan rode their bikes on W. 29th Street, near Ninth Avenue, in Chelsea. Video of the crash showed Clement’s truck rock back and forth at the moment of impact, stop for a time with flashers blinking, then drive away.

Clement testified on the stand that he never saw Dershowitz, either before or after the fatal collision, and said it did not occur to him until later that he may have hit someone, despite the immediate convergence of passersby and, soon after, emergency vehicles at the scene.

Clement was charged by Manhattan District Attorney Cy Vance with leaving the scene of an incident resulting in death, a felony that requires prosecutors to prove that the motorist knew or had reason to know that injury had been caused.

Media coverage of the trial tended to reflect a city press corps that is by and large unable or unwilling to report on vehicular crimes in any meaningful way. Outlets including the Daily News fixated on the notoriety of the victim’s brother-in-law, and eagerly propagated the defense narrative that Clement should not have been prosecuted. WPIX incorrectly reported that Clement was on trial for intentionally running Dershowitz over, but managed to name-check O.J. Simpson and Mike Tyson, former clients of Alan Dershowitz.

“We respect the jury’s verdict. However, far too many cyclists and pedestrians are killed in crashes with motorists each year, in every borough of our city. Often times these deaths are not crimes, but they are of grave concern to this Office, as they forever change the lives of victims, their families, and the drivers involved. We will continue to file charges where we believe the evidence merits them, and do everything we can as an office to make our streets safer for everyone.”

According to Vance’s office, prosecutors have filed charges for leaving the scene 127 times, including 33 incidents involving serious injury or death, so far in 2012.

Okay, so we’ve established (by a jury) that a driver in a truck could be reasonably unaware that they’ve struck a pedestrian while in-transit on local city streets.

Then there’s an easy solution – ban these trucks from city streets that don’t have specific commercial traffic designations for them, and only allow the designations for roads where pedestrians are highly protected/separated by infrastructure or are uncommonly found. Make all commercial traffic on local streets fit vehicle size guidelines that are appropriate to local streets.

Problem solved!

Oh, wait, that’s a political nonstarter? Okay! Well, everyone who disagrees, come with me to Sixth Avenue and line up on the left lane. We’re going to have 10 tractor trailers drive past at 40mph with about a 1-foot clearance. Then you tell me what you think about this, politically.

DA

“We will continue to file charges where we believe the evidence merits them.”

Which means Vance will not file charges.

Anonymous

I’m curious, did this trial include some sort of expert testimony about whether a driver of this specific type of truck should be able to notice when they crush a person? Or was it just a matter of the jury guessing whether Clement was telling the truth when he says he didn’t notice the crash?

We should ask the Mythbusters to crush their test dummy using various types of vehicles and reporting how it feels to the driver!

Albert

Apparently no one in the media is listening to Transportation Alternatives or reading Streetsblog. If they were, then surely they wouldn’t be so consistently and inexplicably pro-car and anti-everyone-else.

Is it a naive and impossible idea that representatives of TA, Streetsblog and similar respectable groups could request (and get) serious actual face-to-face meetings with the mere mortals on the seemingly unreachable editorial boards of WPIX, WCBS, Daily News (Times, Post, etc.) for a teachable moment or two (or a whole day)? The longstanding, seemingly *willful* refusal of the media to see what’s actually happening on city streets just might be informed by, and yield to, a presentation by these highly respected, intelligent and intensely informed people from outside the media’s ivory towers.

Erik Griswold

9-11, 9-11, 9-11, 9-11! How dare you question the actions of this government official, citizen?

http://profile.yahoo.com/CGERUFJ64JJOVARXIX4JEXMYZY IanT

@45589687e8df260df565d048dab64df2:disqus : You’re far too forgiving. The problem with the media is not, generally, one of ignorance.

“I didn’t see them” should be considered an admission of guilt rather than a suitable defense.

It’s good to know that if I hit someone with a car I will face no consequences, but if I almost hit someone on my bike it will be front page news and I will be hung in effigy outside the offices of The Daily News editorial board. Good to know.

The Disabled Cyclist

The driver who hit me, who turned out to be the wife of a church minister, backed her car around me while I was unconscious to make it look like she stopped where she was supposed to instead of running a red light and plowing into me in the crosswalk. She didn’t call 911, I did. She didn’t even ask if I was OK or get out of the car to look.

I didn’t press charges or take her to court for the amount I should have received which was at least three times what I received from her insurer, because I didn’t want to ruin another person’s life, and I feel good about that. But, if it had not been a retiree who it turned out was living on Social Security, and if the car had not been an old piece of crap, I would not have hesitated to take her to court.

In Japan, where I lived for nearly a decade, when a car hits a bicycle or pedestrian it is automatically the driver’s fault and the bicycle is automatically considered totaled. As soon as they know that the car hit a pedestrian or cyclist, that’s the end of the claims investigation because a licensed driver obviously bears the weight of responsibility by virtual of operating a vehicle weighing over a ton and having been tested to confirm they are knowledgeable of the laws of road use as well as the actual operation of the vehicle. They even give special status to drivers who are accident free for a number of years–by which I mean decades–and this translates into huge discounts for them. That’s the way it should be here.

I don’t want to see someone go to jail because they accidentally hit someone with their car, but they shouldn’t get away with their insurance company denying the claim and putting the injured party through all sorts of hell in the process.

I’ve been disabled for two years now as a result of this, had both knees rebuilt with cadaver parts and titanium, surgery on my spine, and the high paying job I had at the time is toast so that now I’m entirely dependent on Social Security Disability until I find a new job before I’m even really physically ready to put in full work days. So I’ve had to suffer an awful lot for the act of someone who was entirely protected by private insurance and my good nature. If this had happened in Japan, I wouldn’t have any of these problems–and most likely it wouldn’t have happened at all because of the severe treatment bad drivers get in that country as compared to here where it is extremely easy to get a license.

This is an indictment of our entire society. I know that sounds grandiose–and maybe it is; I’m not in a good mood reading this–but I can’t get past the sense that a jury of ordinary New Yorkers was so thoroughly steeped in the “accident” theory of traffic that they couldn’t pronounce anyone guilty who’d *only* killed someone with a vehicle. Think about it: they couldn’t even find him guilty of running away from a murder they’d seen him commit and seen him run away from.

Could you kill another person by practically any other means–even something as simple as spilling water on a floor, causing another person to slip and fall–and face such slight penalties? I don’t think so.

It’s the combination of how common these horrors are and how vital it’s become to our culture to keep alive the theory of blameless driving. And I don’t think it will change until we win the argument against the accident theory–and that won’t be easy.

AdamDZ

“”I didn’t see them” should be considered an admission of guilt rather than a suitable defense. “
Agreed. This is admittance of negligence. This whole thing is sick.

http://www.facebook.com/aemoreira81 Adam Moreira

Looking at the video, I’m not seeing the hit and run…where is it?

Paul Schimek

Although Marilyn was originally ahead, all the accounts that I have found suggest that she was overtaking the truck, perhaps because the truck slowed at the constricted point. The video apparently does not show the actual collision. Perhaps there was evidence she was overtaking (from witnesses?). If there was reason to believe the truck driver was overtaking, the trial should have been about his failure to pass safely (not about leaving the scene of an accident). This could have been a failing of NYPD and prosecutors (given past track records), but it seems more likely that she was overtaking, which would explain why the driver did not know that he had hit someone (yes, after the fact, he should have suspected something given the commotion, etc.).
If we are interested in preventing cyclist fatalities, we must get the word out:
Stay away from trucks! Do not overtake on the right, even in a bike lane! Let them go first! Assume that they will be turning right at intersections!
Please, fellow bike advocates, let’s get the word out so we can prevent such tragedies in the future! (We just had one in Boston this week.)London is trying this, but no one in the U.S. has to my knowledge (except here is a Portland example — http://www.streetsblog.org/2008/10/16/portland-water-bureau-launches-biketruck-safety-campaign/)
London Example: http://www.tfl.gov.uk/roadusers/cycling/14799.aspx

Its obvious. Hhe stopped, observed the commotion in his mirrors and made a calculation and won. Very sad that our system of laws permits this. Shame on us all.

Anonymous

@c82cc54593b6dbdd32db4d95344798b2:disqus Yes, bike lanes in that sense won’t protect you. But in that sense, nothing will protect you. That includes sitting behind a truck, since it could back up suddenly (it’s happened to me . . .), another vehicle behind you could ram you, and on an on.

Every account I’ve read makes it seem like Dershowitz was someone trying to operate her bike in a safe way. Maybe her decision doesn’t seem in retrospect like the best one to you, but second-guessing her does her no good–nor anyone else that I can see.

Erik Griswold

Love the 9/11 defense! “Why, that bicyclist who I just ran over could be trying to distract me so she can use my truck for a terrorist attack!” I’ll try that one if I ever get in a crash.